Marriage equality is (nearly) here to stay

Next week the Supreme Court will hear oral arguments for challenges to state bans on same-sex marriage. Whether the court proceeds to strike down all state bans — legalizing same-sex marriage nationwide — or opts for a more incremental step, it is now clear that marriage equality will soon be the law of the land. It is also clear that when the court does finally strike down bans on same-sex marriage, there will be no real backlash.

The fear of a backlash has shaped the strategy of gay rights activists for the past two decades. History suggested their fears were well founded. After the court handed down its decision in Brown v. Board of Education in 1954, declaring school segregation unconstitutional, white Southerners organized a massive resistance that effectively nullified the court’s ruling. As late as 1963, only 1 percent of black children in the South attended school with white children.

In 1973, when the court ruled to legalize abortion in Roe v. Wade, the backlash developed more slowly and more effectively. In the decades that followed, anti-abortion activists built an extensive grass-roots network and an unshakeable political base in the Republican Party. That organizing allowed them to chip away at the abortion regulations established by Roe. By closing clinics, choking off funds and shortening the time frame in which women could legally obtain an abortion, activists successfully leveraged the backlash to limit Roe’s reach.

These were ominous precedents. What if proponents of same-sex marriage successfully won recognition from the court, only to have it snatched away in the backlash that followed? So they moved slowly, seeking only incremental gains lest they got too far ahead of public opinion.

Meanwhile, opponents of marriage equality got a jump-start on the backlash, enacting their massive resistance well before the Supreme Court took up the issue of same-sex marriage. (Acting preemptively was all the rage in the early 2000s.) Yet no matter how much legislation they passed, no matter how many state constitutions they amended, opponents of marriage equality could not halt the rapidly growing support for same-sex marriage.

By the time the Supreme Court struck down the Defense of Marriage Act in 2013, it was clear opponents of marriage equality were fighting a losing battle. When the chief justice of Alabama’s Supreme Court ordered probate judges to refuse to issue marriage licenses to same-sex couples earlier this year, it felt like the last gasp of a dying movement, not the call-to-arms of a growing resistance.

As last month’s Religious Freedom Restoration Act fight in Indiana shows, there are still barriers to full civil rights for gay Americans. Indiana and 28 other states still allow discrimination based on sexual orientation, and there is no federal Employment Non-Discrimination Act. In the case of marriage equality, though, the fight is nearly won.

Prior to the 2013 rulings, a number of gay-rights activists worried that the court would legalize marriage equality across the country, triggering a backlash. Mary Bonauto, director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders, told The Associated Press in late 2012, “Mindful of history, I can’t help but be concerned.” Activists awaiting this year’s rulings can set their minds at ease. The backlash has come and gone, and marriage equality, when it arrives, will be here to stay.

Nicole Hemmer is Assistant Professor in Presidential Studies at the University of Virginia's Miller Center, working with the Presidential Recordings Program and a Research Associate at the US Studies Centre. She is the author of Messengers of the Right: Conservative Media and the Transformation of American Politics.